Friday, January 29, 2010

UNEMPLOYMENT INSURANCE - ATTORNEYS FEES

I have been advised that some attorneys representing claimant's have been asking for consultation fees or advance fees for representation at a hearing but here are the Appeal Board Rules regarding attorney fees:

"Section 460.6 Representative's fee.
(a) When an attorney represents a claimant outside New York City at a board or administrative law judge hearing, the board or administrative law judge shall ascertain whether or not such attorney is appearing for claimant on a fee basis. If benefits are allowed by the board or administrative law judge decision, the board or administrative law judge shall require such attorney, following the mailing of the decision, to submit a written statement of his claim for compensation for such service, setting forth in detail:
(1) the total benefits allowed;
(2) the time spent in providing representation;
(3) the legal and factual complexities involved; and
(4) any other factors which may be deemed relevant to the board's determination of the fee that should be allowed.
When such claim is submitted to an administrative law judge, he shall forward such application, together with his recommendation, to the board for appropriate action. When such claim is submitted to the board, action shall be taken thereon by a board member.
(b) When an attorney or registered agent represents a claimant in New York City at a board or administrative law judge hearing, the board or administrative law judge shall ascertain whether or not such attorney or registered agent is appearing for claimant on a fee basis. If benefits are allowed by the board or administrative law judge decision, the board or administrative law judge shall require such attorney or registered agent, following the mailing of the decision, to submit a written statement of his claim for compensation for such service, setting forth in detail:
(1) the total benefits allowed;
(2) the time spent in providing representation;
(3) the legal and factual complexities involved; and
(4) any other factors which may be deemed relevant to the board's
determination of the fee that should be allowed.
When such claim is submitted to an administrative law judge, he shall forward such application, together with his recommendation, to the board for appropriate action. When such claim is submitted to the board, action shall be taken thereon by a board.
(c) If a claimant, an attorney or a registered agent is dissatisfied with the fee set by the board, such person may apply to the board for reconsideration of the fee. Such application must be made in writing within 15 days of the mailing of the notice of the fee approval. In its discretion, the board may accord the parties an opportunity to be heard. The chairman of the board shall designate a member of the board, an administrative law judge, or any other person to hold such hearing. If the hearing is held before an administrative law judge or an individual who is not a member of the board, such designee shall conduct the hearing and submit a report to the board including his recommendation as to the fee. As soon as practicable after the receipt of the application and on the documents submitted or after the conclusion of the hearing, the board shall issue a decision setting forth the fee awarded and the reason(s)therefor.
d) No attorney or registered agent shall receive any money from a claimant, as payment of a fee for representing such claimant, until the board has approved the fee to be allowed. If an attorney or registered agent shall have received a fee payment prior to the approval of the board, he shall promptly remit to the claimant any amount received which is in excess of the amount allowed by the board. If the attorney or registered agent shall fail to make such remittance, the claimant may submit an application to the board for an order or restitution. The chairman of the board shall then designate a member of the board, an administrative law judge, or any other person to hold a hearing, upon due notice to all parties including the corporate surety, for the purpose of considering the application. If the hearing is held before an administrative law judge or an individual who is not a member of the board, such designee shall conduct the hearing and submit a report to the board, including his recommendation on the application. Thereafter, the board shall issue an order on the application. Such order shall be deemed the order of the board when signed by any member of the board and when duly mailed and filed in the Department of Labor. A copy of said order shall be mailed to all parties in these proceedings, including the corporate surety."

10 comments:

  1. Hi, I am a registered representative who represents claimants before the Unemployment Insurance Appeal Board. Since you posted this the situation has gotten worse. The average attorney who appears there is well aware that they are not allowed to take fees for UI work so they simply cloak the "consultation fee" as a general consultation on labor law. This is even when the claimant is only seeking representation for a hearing in the next few days. We of course cannot charge any fee at all prior to UIAB approval. It is very good to see an attorney so clearly stating that this is not proper (albeit an attorney who does UIAB work pro bono).

    They are also pretty blatantly soliciting clients and unfortunately telling clients who can win that they don't have a prayer. Being at the hearing location gives them tremendous authority. From experience I have won cases they told claimants not to bother with.

    I also think that attorneys who are listed on the UIAB list should be required to take a certain number of cases to maintain the listing. Too many are just trolling for labor law cases and have no real intention of representing UI only cases. This is a problem because UI claimants get very discouraged because often they have called the free side of the sheet without response and then start calling the paid side. They usually get no response or few responses and most of those are negative. Most tire of calling and don't get to the actual lawyers and representatives interested in helping them out.

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  2. Thank you for your comment.

    I should first note that yes some of my UI work is pro bono, as well as mortgage foreclosure and matrimonial, but I also do cases on a fee basis; however, I go by the rules and with UI matters, I regularly advise Claimants, whether or not I represent them, that advance fess are improper. Fees are only payable if the attorney is successful and then only in an amount approved by the Appeal Board and after the Claimant is so advised. If the Claimant has paid any fee up front, they should notify the Appeal Board immediately.

    I have heard (and seen) that there are attorneys who engage in the practices you describe but I should also note that I have experienced all sorts of "unusual conduct" (for lack of a better word) from Claimants, Employers, Attorneys and Service Representatives. And let us not forget that decisions of the DOL have been overruled by ALJs and that decisions of ALJs have been overruled by the Appeal Board and that decisions of the Appeal Board have been overruled by the 3rd Department, etc.

    Any litigation is a process and is 50/50 - you either win or lose and with UI claims, there is no settlement. Personally, I have no crystal ball and cannot predict the outcome of a UI hearing and many times the process will continue to the Appeal Board and beyond. I am surprised at times and resigned at others.

    Perhaps some attorneys evaluate cases differently from service representatives - remember attorneys have the attorney/client privilege and information may be given to an attorney that a Claimant may not feel comfortable giving to a service representative.

    I would say that more discouraging to UI claimants would be recent decisions coming down from the 3rd Department which seem to have a "liberal" view of misconduct.

    I know I have been contacted by the Appeal Board to find out better ways to get attorneys more involved in these matters. My strongest suggestion was that the Claimant should be given a notice to seek representation when they receive an adverse determination or a notice of receipt of Employer's request for hearing. I believe these cases do involve preparation, etc. and there is no discovery other than reviewing the file a few days before the hearing; and many cases cannot be resolved in just one hearing.

    Fortunately, the Appeal Board has a FAQ on self representation and their website has helpful resources.

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  3. I live in upstate NY and did attempt to get the lawyer closest to me in distance, to help with my UI case. He asked that I put the information in PDF format and send it to him via e-mail. After sending the requested info, he never responded to my e-mail or the three phone calls I made after sending him scanned legal documents that he requested. A few months later I joined Face Book, when FB was going through my e-mail account it came up with this lawyer's e-mail address, which is used by his daughter. I found this very upsetting considering the information I sent him was personal, it seems to me this is in violation of the law.

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  4. Thank you for your comment.

    If you have a complaint against an attorney, you may contact the Attorney Disciplinary / Grievance Committee. The office you need to contact depends upon the location of your lawyer's office.

    I refer you to this link:

    http://www.courts.state.ny.us/ip/attorneygrievance/complaints.shtml

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  5. Hi JMP! I never read your response to my post because I didn't know about it until someone asked me why I didn't answer.

    You are absolutely correct. Attorney/ client privilege is something that certain claimants need. I get about 5 - 10 calls a month from claimants trying to get advice on how to best cheat unemployment while living overseas or working off the books while collecting. I patiently explain that only an attorney can advise them of all possible legal ramifications (ie prison, tax consequences, licensing problems, etc.) and that I could only represent them after they have been caught by the Department and sanctioned (and that chances are that the Department will get them and that I would likely refuse the case as unwinnable anyway).

    Clearly, without the attorney/ client privilege the authorities could force the advising attorney to give details of the claimants schemes that could lead to even more trouble!

    So I definitely agree with you on that issue for any case involving scheming claimants.

    I also get claimants who have attorneys for advice who simply do not want to deal with the unemployment hearings. I get a few referrals like that and I think the advantage to the referring attorney is that he or she knows that I cannot snatch their client for any juicy torts or other court jurisdictioned claims (a/k/a the big stuff!)

    Lastly, I cannot believe that a New York attorney actually posted a link to the disciplinary committees on their personal blog. I really have to tip my hat to you!

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  6. Thank you.

    And the new Rules of Professional Conduct amended through June 2011 may require an attorney under certain circumstances to make certain disclosures about the client to the court - as attorneys, we are officers of the court.

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    ReplyDelete
  8. Michelle Reynolds, J.D.September 15, 2012 at 6:10 PM

    Mr. Probstein,

    I noticed you have been special counsel in Los Angeles and am wondering if you have any experience with Unemployment Insurance Claims in California. I am specifically wondering if CA has any strict guideline pertaining to U.I. Representative compensation like other jurisdictions such as NY have. I'm not sure that CA really does given CA Unemployment Insurance Code § 1957 and Cal. Admin. Code Title 22, § 5011 quoted in full below.

    §1957. Any individual claiming benefits in any proceedings before the appeals board or its authorized representative may be represented by counsel or agent but no such counsel or agent shall charge or receive for such services more than an amount approved by the appeals board. Any person who violates any provision of this section shall for each such violation be fined not less than fifty dollars ($50) nor more than one thousand dollars ($1,000) or be imprisoned not more than six months or both.

    § 5011. Fees of Claimant's Representative.

    If a representative charges a fee for representing a claimant and an issue as to the amount of the fee is raised by the claimant, the representative, an administrative law judge, or a member of the board, the representative shall receive no more for the representative's services than an amount approved by an administrative law judge or the board. If no issues as to the amount of such a fee is raised, the fee shall be deemed approved. The fee approved by an administrative law judge may be reviewed by the board."

    Any thoughts?

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  9. Michelle Reynolds, J.D.September 15, 2012 at 6:11 PM

    Mr. Probstein,

    I noticed you have been special counsel in Los Angeles and am wondering if you have any experience with Unemployment Insurance Claims in California. I am specifically wondering if CA has any strict guideline pertaining to U.I. Representative compensation like other jurisdictions such as NY have. I'm not sure that CA really does given CA Unemployment Insurance Code § 1957 and Cal. Admin. Code Title 22, § 5011 quoted in full below.

    §1957. Any individual claiming benefits in any proceedings before the appeals board or its authorized representative may be represented by counsel or agent but no such counsel or agent shall charge or receive for such services more than an amount approved by the appeals board. Any person who violates any provision of this section shall for each such violation be fined not less than fifty dollars ($50) nor more than one thousand dollars ($1,000) or be imprisoned not more than six months or both.

    § 5011. Fees of Claimant's Representative.

    If a representative charges a fee for representing a claimant and an issue as to the amount of the fee is raised by the claimant, the representative, an administrative law judge, or a member of the board, the representative shall receive no more for the representative's services than an amount approved by an administrative law judge or the board. If no issues as to the amount of such a fee is raised, the fee shall be deemed approved. The fee approved by an administrative law judge may be reviewed by the board."

    Any thoughts?

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  10. To Ms. Reynolds:

    I do not practice in CA but I would suggest you contact the CA Appeal Board for instructions on fee approval.

    The statutes and regs you quote are similar to NY rules and here in NY I must make an application to the AB for a fee. They will then set a fee and the claimant can request a hearing if they do not consent.

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